MCKINNEY: Taking back the War Powers Clause

Presidents usurp authority to declare war

By Jared McKinney - -
Monday, March 11, 2013

President Obama has done something almost unique: He has spoken of the limits of American power and the limits of our ability to achieve good through military intervention. Prudence, not fanatical idealism, has so far defined his Syria policy.

Conspicuously absent from the public debate and the president’s foreign-policy calculus, however, is discussion of the Constitution. It may come as a surprise to many, but the executive does not have the authority to make war. This is no constitutional quirk. War, in the Founders’ perspective, was not some casual affair. America was to be different from the capricious and belligerent monarchies of Europe, so the right to declare war was not granted to the president, but to Congress.

This accomplished at least four things: First, it made war possible only after careful deliberation by both houses of Congress, thus rejecting the easy, petty and foolish wars of the continental powers. Second, it gave a voice, through their assembled representatives, to those who would be fighting the war — the people. Americans are willing to fight for their country, but they are not willing to fight one man’s war. Third, it made war a serious business — a national affair, declared by the representatives of the people. The offending foreign power would thus comprehend that it was opposed not by the fickle will of one man, but by the whole might of the nation. As the two great wars of the last century demonstrated, an aroused American populace is something to fear. Finally, the rule differentiated between war and peace.

War and peace, in the Western tradition, are distinct states of human existence. There is no quasi-state of war or of peace. The nation is either at peace, and thus minding its own business and pursuing the American dream, or the nation is at war, and thus pursuing victory so peace might be re-established. To claim both is deceitful, it betrays the nation’s servicemen, and it endangers the nation’s objective. In this framework, there should be no way to slip into war, though we did in Vietnam, or to carry out futile invasions, though we did in Cuba.

Mr. Obama knows the executive does not have the authority to make offensive war. In 2007, while still a senator, he declared, “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” He continued: “History has shown us time and again, however, that military action is most successful when it is authorized and supported by the legislative branch.” This, unfortunately, did not stop him from commanding U.S. forces to fight in Libya. With Syria, though, he gets a second chance.

Though the world has changed in many ways since 1789, the rationale for restricting the warmaking power of the executive stands unchanged. “The executive is the department of power,” wrote James Madison, “most distinguished by its propensity to war.” By limiting war, the Founders sought to protect liberty. Madison warned, “Of all the enemies of true liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other.” From war, he said, come armies, debts and taxes. The War Powers Clause, in the mind of the Founders, was perfectly clear. In George Washington’s words, “no offensive expedition of importance can be undertaken until after [Congress] shall have deliberated upon the subject, and authorized such a measure.”

Plato once remarked that war “habituate[s] men to base habits.” Of late, the executive has habituated itself to undeclared wars, foreign interventions and losing propositions. The first question of the executive should not be, “What can I do to make the world a better place,” but rather, “What have the American people authorized me to do to defend their interests?” Not only does the Constitution require such inquiry, but the future peace of our country depends on it. Madison got it right: The United States must adhere “to the simple, the received, and the fundamental doctrine of the Constitution, that the power to declare war is fully and exclusively vested in the legislature.” Mr. Obama has acknowledged the limits of American power. Now, it’s time for him to acknowledge the limits of presidential power.

Jared McKinney, 21, is a graduate student in defense and strategic studies at Missouri State University.